Scenes From a Khmer Rouge Trial Gone Wrong

Instead, it has worked the other way around, as the highly politicized Cambodian judicial system has seeped into the fabric of the court, apparently influencing both local and foreign judges alike. Prime Minister Hun Sen, whose musings and caprices are as good as law here, has insisted for at least a decade, loudly and publicly, that he would only allow five suspects to be prosecuted at the court.Kuch Naren contributed reporting from Phnom Penh

Hun Sen, a former Khmer Rouge soldier himself who defected to Vietnam early enough to avoid prosecution, has repeatedly warned of mass bloodshed and civil war if additional Khmer Rouge were pursued. And it turns out the UN should probably have listened a little harder to what he was saying all along.

In 2009, over the objections of the court's Cambodian prosecutor, international prosecutors opened two new cases, known as 003 and 004. They dealt with crimes committed by two revolutionary military commanders -- the heads of the Khmer Rouge navy and air force -- as well as three mid-level leaders allegedly responsible for over 100,000 deaths at brutal prison camps and worksites in the country's north and northwest.

The two commanders, Meas Muth and Sou Met, have since become high-ranking members of Cambodia's military, where they still are. One of the other leaders, Im Chaem, is a local government official in Hun Sen's political party. Less is known about the other two, known as Grandfather Tith and Grandfather An, but one is believed to be a wealthy businessman in Phnom Penh.

At the tribunal, which derives its structure from French civil law, prosecutors open cases and hand them off to investigating judges, who are supposed to meticulously examine the alleged crimes before issuing indictments or dismissing charges. But under the glare of Hun Sen's fierce disapprobation, the two investigating judges agreed to quietly close Case 003 in April without interviewing Meas Muth or Sou Met, visiting crime scenes pinpointed by prosecutors, or apparently doing much at all. Rumor here had it the judges stuffed case files with papers to make them appear bigger.

By all accounts, the investigating judges are conducting an equally shoddy investigation in Case 004 and are poised to close it as quickly as they can. They have issued unusually sparse public information about both cases, withholding even a key list of crime scenes, without which victims are unable to file civil complaints. Meanwhile, the judges' investigating staff -- including Stephen Heder, one of the world's top experts on the Khmer Rouge -- have fled the court en masse. In his widely circulated resignation e-mail, Heder cited a "toxic" working environment and the judges' decision to close Case 003 "effectively without investigating it."

The tribunal's most bitter intramural duel has pitted British Co-Prosecutor Andrew Cayley against the erratic and defensive German Investigating Judge Siegfried Blunk, who joined the court in December. Cayley has pushed the judges to conduct a better investigation, filing a formal request that would require them to take remedial steps such as actually interviewing the suspects in the case. Cayley also revealed the long-delayed list of crime scenes in Case 003 and requested more time for victims to file their claims. Blunk and his Cambodian counterpart, You Bunleng, promptly censured Cayley, ordering him to "retract" the information within three days and publicly considering contempt-of-court charges against their colleague.

Both the UN and the court's major international donors -- which include the U.S., Great Britain, Australia, and Japan -- have largely declined to address the deteriorating situation, focusing instead on getting Case 002 under way. Donors seem to be hoping hard that everyone will forget about the other two cases and focus on the business of prosecuting the four top leaders, whom everyone can happily agree should be tried, and soon.

But it will not be so easy. For one thing, the implosion of the final two cases is not self-contained. If 003 and 004 are dismissed after shoddy investigations, it will call into question the legitimacy of the court's first two trials, and the tribunal itself.

"This court was created with the full knowledge that the Cambodian prosecutors and judges would be subject to pressure from the Cambodian government, and there are rules in place to insulate the proceedings from that possibility," said Anne Heindel, an expert in international law who monitors the tribunal for a local NGO.

"However, the rules are impotent when a UN-appointed judge colludes in a sham. And that's why the brazen failure to investigate the suspects and the crime sites in Cases 003 and Case 004 is so menacing -- it threatens to taint the entire investigative process and thus the legitimacy of all the Court's proceedings."

Defense lawyers for the four senior leaders have complained for years that political interference would make it hard for their clients to get a truly fair trial. In 2009, the court attempted to question six senior members of the current ruling party, including the presidents of the Senate and National Assembly and the ministers of finance and foreign affairs. Most of them were former Khmer Rouge members -- one a former assistant to Pol Pot -- with knowledge that could have shed light on the internal mechanics of the regime. But the government immediately announced the six would flout the summonses, and their evidence has never been heard.

In an impassioned speech immediately after the trial in Case 002 began, Nuon Chea's lawyer Michiel Pestman reminded listeners of these facts, arguing that the debacle of cases 003 and 004 was symptomatic of a much larger problem.

"The government has from the very beginning obstructed the investigation against our client, as they are now doing in cases 003 and 004," he said. "The way the initial investigation unfolded shows that this government still fails to understand the crucial importance of an independent judiciary. Government should not tell judges what to do."

It's not clear what, if anything, the UN can do to resolve the situation, or whether it even wants to. When UN Secretary-General Ban Ki-moon visited Phnom Penh last year, Hun Sen told him flatly that cases 003 and 004 were "not allowed." Ban never directly addressed the comments, even when queried by concerned tribunal staffers, saying only that the UN expects that the court would remain independent. In June, Ban's office issued an unusual media statement explicitly declining to comment on the work of the investigating judges in cases 003 and 004, but emphasizing the "true international significance" of Case 002.

"The Khmer Rouge tribunal has become a court for cutting off the dick of the UN," a Cambodian friend of mine observed shortly after the statement was released, playing off the graffiti here.

And though Sem Hoeurn and many other victims of the regime are enjoying their day in court, their long-delayed opportunity to look their tormentors in the eye, countless others will not be given the same chance.

Im Chaem, the suspected former Khmer Rouge official who would likely have been indicted had Cases 003 and 004 moved forward, is now a spry, tiny old woman with a toothy perma-grin, known to her neighbors as Grandmother Chaem. When I met her last year at an NGO-sponsored forum near her home near the Thai border, she chatted and bantered happily with attendees before retiring to a refreshment table, where she proceeded to put away dozens of the sweet glutinous rice cakes known as num ko'am at an astonishing pace, discarding their banana-leaf wrappers in a neat pile at her feet. It was hard to square her essential adorableness with her fearsome reputation. Under the tutelage of her mentor, the notorious peg-legged warlord Ta Mok, she is accused of overseeing ideological purges, forced labor sites, and mass executions that killed thousands.

But I did glimpse her inner steel in a later interview. Reached by telephone, Chaem said talk of her involvement in Case 004 was just a "rumor" that had been cleared up by the government's assurances that the case did not exist. She insisted she had never committed a crime during the regime, and that any killings that occurred at the time were due to disagreements between individuals, not Khmer Rouge policies.

"I have no intention of going to court," she said. "I'm happy because I feel protected by the government, especially Prime Minister Hun Sen."